U.S. Sentencing Commission

U.S. Sentencing Commission

The U.S. Sentencing Commission is the agency responsible for the establishment of sentencing policies and procedures for the federal court system. The first task of the commission was to develop a uniform set of sentencing guidelines for the federal courts. The commission also collects and analyzes information on topics concerning federal crime and sentencing. In addition, the commission gives advice and assistance to Congress and to the Executive Branch regarding the development of policies related to crime and criminal acts. The commission was created in 1984 in response to shifting views of penology in the United States.

The history of sentencing in the United States has been marked by evolution and fluctuation. In the late 1800s and early 1900s, the criminal justice profession embraced the rehabilitation model of punishment. This theory held that criminals were subject to rehabilitation and that taking into account the offender's life experience and looking at any extenuating circumstances could best effect such rehabilitation. Using this model many states established a system of "indeterminate sentencing." Under this system, both state and federal judges had the discretion to impose a sentence that took into account the defendant's character and background as well as the type of crime that had been committed. As a result, judges could sentence offenders to a wide range of penalties ranging from Probation to a maximum sentence. When a judge sentenced an offender to prison, Parole boards were charged with determining whether an offender should serve the entire sentence imposed by a judge or be subject to early release for good behavior while incarcerated.

By the 1950s and 1960s, the theories surrounding effective punishment changed again. Facing criticism that indeterminate sentencing was giving judges and parole boards too much discretion and not reducing crime, a number of state legislatures passed laws that called for mandatory minimums for certain crimes. Proponents of the deterrence model contended that people would be deterred from committing crimes if the consequences are sufficiently severe and called for the enactment of sentencing guidelines. By 1980 the guideline concept gained a number of adherents among elected officials and the general public. State legislatures began to pass reform acts that incorporated determinate sentencing guidelines to insure that offenders who committed the same or similar crimes and had similar criminal histories would receive equivalent sentences.

In response to the same complaints about indeterminate sentencing at the federal level, Congress passed the Sentencing Reform Act of 1984 (SRA) (Pub. L. 98-473, title II, ch. II, Oct. 12, 1984, 98 Stat. 1987). The act abolished federal parole and reduced to 54 days a year the amount of time credited to inmates for good behavior. The act also created the United States Sentencing Commission as an independent federal agency that is part of the judicial branch of government. The commission, which is based in Washington, D.C., has seven voting members who are appointed by the president and confirmed by the Senate. At least three of the commissioners must be federal judges and no more than four can belong to the same political party. The attorney general of the United States and the chair of the U.S. Parole Commission are ex-officio members of the commission. Commissioners served six-year terms. The commission has approximately 100 employees divided into seven offices, four of which deal with substantive policy issues. The four policy offices are General Counsel, Monitoring, Policy Analysis, and Education and Sentencing Practice. The three support offices are Special Counsel, Legislative and Governmental Affairs, and Administration and Planning. Commission staff consists of attorneys, researchers, data technicians, administrative support staff, a public information component, and congressional liaisons.

One of the commission's first tasks was the development of sentencing guidelines for the federal courts. Major criminal offenses that are typically sentenced in federal courts include drug trafficking, Fraud, immigration offenses, and bank robberies. The commission's sentencing guidelines went into effect on November 1, 1987. The guidelines assign most federal crimes to one of 43 "offense levels" based on the severity of the offense. Each offender is also categorized within one of six "criminal history categories" based on his or her past criminal record. The guidelines utilize a table that shows the point at which the offense level and criminal history intersect. The point of intersection determines the guideline range for that particular offense. The guidelines allow a small amount of discretion for judges to alter a sentence. However, restrictions apply to these modifications which are termed "departures." The judge must have specific grounds for departing from the sentence dictated by the guidelines, and the reasons must be listed in the trial record. The guidelines grant more flexibility for a judge who chooses to increase the amount of time an offender can be imprisoned than for a judge to decrease a sentence. Sentences outside the guideline range are subject to review, and all sentences are subject to review for incorrect application of the guidelines.

Judges who object to having their discretion reduced and rehabilitation advocates have sought to repeal or change the commission's guidelines. The Supreme Court upheld the constitutionality of the federal guidelines in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). A number of judges have continued to voice their opposition to a system that they allege sometimes dictates a severe sentence for minor criminal conduct and does not permit them to make modifications absent unusual circumstances. Other critics have charged that prosecutors can tailor the charges against the offender in such a way as to predetermine the ultimate sentence.

Approximately 50,000 offenders are sentenced annually in the federal courts, so the work of the commission has a tremendous impact on the nation's system of criminal justice. The commission continues to refine the sentencing guidelines based on the collection and analysis of court decisions, sentencingrelated research, and input from criminal justice experts. In 1995 the commission, by a vote of 4–3, recommended that the guidelines be changed to equalize the penalties for selling crack cocaine and powdered cocaine. The commission found that there was no scientific basis or other justification for the disparity that required the same sentence for the sale of 1 gram of crack cocaine as for the sale of 100 grams of powder cocaine. For the first time in the history of the commission, Congress rejected the agency's recommendations. While the Senate did not vote on the recommendation, the House voted 332–83 to continue the 100 to 1 disparity in the penalty.

Members of the criminal defense bar, judges, and other members of the criminal justice community continued to seek an end to the disparity, citing the commission's own research which showed that the average sentence for the sale of crack cocaine was longer than the average sentences for Robbery, Arson, Sexual Abuse, and Manslaughter. The commission's 1999 Sourcebook of Federal Sentencing Statistics also indicated that while the majority of crack users in the United States are Caucasian, 94 percent of those sentenced for the sale of crack cocaine are African American or Hispanic. The controversy continued into the early 2000s.

Professor in Accounting Education, McCombs School of Business, The University of Texas at Austin - Michael Horowitz Litigation partner, member of the Business Fraud and Complex Litigation Group, Cadwalader, Wickersham & Taft LLP Commissioner, U.

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